Fast -and Slow- Thinking

• Author: Mark K. Dickson
• Position: Mark K. Dickson is chair of the ABA Section of Intellectual Property Law. As solo practitioner and principal of Phase M Legal in San Mateo, California, he specializes in portfolio development and evaluation, risk assessment, licensing, and litigation avoidance for a wide range of technologies, including plant patent matters. He can be reached...
• Pages: 3-3

Published in Landslide® magazine, Volume 11, Number 1, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2018 by the American Bar Association. Reproduced with permission. All rights reserved.

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Perspective

T hinking, Fast and Slow is a book on the differences

between intuitive decision making (“fast thinking”) and

thoughtful deliberative reasoning (“slow thinking”).

The author, Daniel Kahneman, won a Nobel Prize in 2002 for

his research disproving the widely held belief that most people

are generally rational and their thinking is normally sound. He

showed that judgment and intuitive decision making are based less

on rational thought than on a host of nonrational inuences, like

bias and past experiences. Deliberate slow thinking, on the other

hand, is the product of more structured analysis and organized

cognitive effort (although also inuenced by bias and experience).

Kahneman’s research has been widely applied by psychologists,

economists, and others to explain judgment and decision making

in every context from general human conduct to medical diag-

noses, intelligence analysis, philosophy, nance, statistics, legal

judgment, and military strategy, and has led to numerous efforts

designed to improve the human decision-making process. Behav-

ioral economics, based largely on Kahneman’s principles, has had

a major impact on how people invest once they understand their

intuitive decisions are not as rational as they thought.

Not all fast thinking is irrational or bad nor, conversely, is

all slow thinking good or even useful. Some fast thinking/intui-

tive decision making is necessary for survival (as in involuntary

reactions to loud noises or potential sudden impacts). But lots

of other fast thinking examples, such as choosing a chess move

or deciding whether to invest in a stock, have less to do with

survival or logic and more to do with systematic bias and famil-

iarity. Good traits in fast thinking can be learned and adopted

over time with conscious effort or through repeated exposure and

experience. But most people are greatly surprised to discover

that what they thought was rational-based intuition and decision

making in stock purchases, for example, or even in a decision to

buy a new car, turn out not to be very rationally based after all.

They are even more surprised to learn that fast thinking/intuitive

decision making is more inuential than their experience tells

them, and that it is, as Kahneman characterizes it, “the secret

author” of many of the choices and judgments they make.

As attorneys, we do a lot of fast thinking, but not all of it is

the intuitive type discussed in Kahneman’s book. We’re trained

to think on our feet in the courtroom and the boardroom with

quick reactions, rapid responses, and on-the-spot decisions.

Clients want immediate answers and judges have short dead-

lines, so there is plenty of incentive for sound fast thinking

when we’re called upon to make arguments and defend posi-

tions on short notice. The condent ability to respond quickly

and coolly with precision and logic is a large part of providing

highly valued advice and counsel to our clients.

We also do a lot of “deliberate” slow thinking. There are times

when we need to shift gears and think in cautious and unhurried

terms to truly be effective. Many circumstances require a mea-

sured and well-thought-out legal approach with a view toward

the long term. Policy decisions aren’t made in a snap, laws don’t

change in a heartbeat, and cases aren’t built overnight. It takes a

concerted methodical view, a well-thought-out strategy, and an

enduring effort to build a brand, develop a portfolio, or shepherd a

new law through Congress to achieve the desired goals and objec-

tives. Long-term results require lasting and sustained effort, and

attorneys are well versed to provide it.

Of course, none of this fast and slow thinking occurs in a

vacuum. Whether intuitive or deliberate thinking, it usually

involves more than just one person to accomplish. That’s why

we all benet from working together. We interact with others

on a continuous basis in cooperating, learning, developing, and

implementing the many judgments and decisions we make.

I invite you as members of the ABA Section of Intellectual

Property Law (ABA-IPL) to take advantage of our opportuni-

ties to meet and collaborate with like-minded attorneys and to

wade into the thinking, both fast and slow. No matter what your

interests are, the ABA-IPL Section is a place for you to meet oth-

ers with similar goals and desires. Our divisions and committees

cover a broad range of topics that encompass all facets of intel-

lectual property practice—whether your background is in patents,

trademarks, copyrights, trade secrets, or other substantive areas,

and whether you concentrate on litigation, prosecution, licens-

ing, legislation, or transactions. We have committees in antitrust,

arbitration, gaming technology, copyright ofce affairs, pro bono,

and ethics, just to name a few. With the benet of the grassroots

work of our committees, we talk to Congress, the U.S. Patent and

Trademark Ofce, the Copyright Ofce, and other agencies to

make policy and inuence legislation. ABA-IPL is a place where

you can join with both national and international attorneys to help

shape the future of intellectual property law.

At ABA-IPL we think fast, and we also think slow. This

balance is why we’re so successful as the largest intellec-

tual property law association in the world. It’s a balance that

we also see in every issue of this world-class magazine and

within our preeminent portfolio of nearly 60 book titles.

With your help as one of our thinkers (whether fast or

slow thinking is your preference), the Section’s best thinking

is yet to come. n

Mark K. Dickson is chair of the ABA Section of Intellectual

Property Law. As solo practitioner and principal of Phase M Legal

in San Mateo, California, he specializes in portfolio development and

evaluation, risk assessment, licensing, and litigation avoidance for a

wide range of technologies, including plant patent matters. He can

be reached at mdickson@phasem.com.

By Mark K. Dickson

Fast—and Slow—Thinking